Free Software Matters:
Free Software and the Broadcast Media, II

In my last column I discussed the pending proceeding of the US
Federal Communications Commission to consider copy-protection for
broadcast digital television. I described the significance of the GNU
Radio program, which allows general-purpose computers to process
waveform data received from wireless receivers and thus to interpret
digital TV signals. Because GNU Radio is free software that any user
has the right to understand and to modify, when GNU Radio is
configured to receive broadcast digital TV, a user could modify the
program to ignore the copy-protection--in the form of the so-called
``broadcast flag''--under consideration by the FCC.

But GNU Radio's role in challenging Hollywood's preferred form of
``content protection'' for digital TV is just the beginning. In a
much larger sense, over the next decade, free software will be an
inherent part of a rebellion against the way the electromagnetic
spectrum is managed throughout the world.

Since the late 1920s, governments everywhere have controlled the
electromagnetic spectrum under conceptions of ``stewardship,''
``public trust,'' or ``public ownership.'' In some countries this has
meant government exercising complete control over broadcast media, in
others government has ``licensed'' a few favored private parties to
make exclusive use of particular frequencies. Some mix of
government-controlled and private broadcasting has been the norm in
many societies, as it has been in Great Britain for the last
generation.

All these arrangements have been predicated on two basic
principles: that the electromagnetic spectrum is inherently a public
resource ultimately owned by the people as a whole, and that
technical factors require government to control the use of the
spectrum in order to prevent what the economist Garrett Hardin
famously called ``the tragedy of the commons.'' If everyone were free
to use all frequencies of the spectrum however he or she liked,
interference would frustrate everyone's attempts. So, in the
interests of the public, governments have given exclusive control over
some frequencies to individuals and organizations, called
``broadcasters,'' who have acquired enormous social influence and
power as a result of their ownership of the means of mass
communication.

But the technical basis on which this system of broadcasting rests has
grown shaky. The modern cellphone is an example of a device that
shares the electromagnetic spectrum with tens of thousands of other
similar devices, without creating the cacophony associated with
unregulated broadcasting. ``Wi-fi'' data communications, capable of
carrying voice and video signals as well as every other form of
digital information, are similarly arranged around spectrum sharing.
These are early examples of the twenty-first century approach to the
electromagnetic spectrum, in which frequencies are optimally employed
by being shared--used simultaneously by intelligent devices for all
sorts of one-to-one, one-to-many and many-to-many communications--not
by being exclusively ``licensed'' to a few ``broadcasters'' who gain
the power to communicate with millions while everyone else merely
watches or listens.

Although there are new, more efficient, and more democratic ways
of using the public airwaves, governments remain in control of
spectrum, assertedly on their citizens' behalf, and governments either
themselves control broadcasting, or--as in the United States--are
dependent for their political success on the broadcasters they have
licensed. As a result, the power of the de facto owners of
spectrum is maintained by the power of the State.

But ``software-controlled radios,'' transmitters and receivers whose
selection of frequencies and communications protocols are implemented
in software, are going to become ubiquitous in the next decade; again,
the cellphone is a familiar early example. And if the software in
software-controlled radios is free software, users gain the ability to
modify for themselves the rules about how spectrum is employed.

Could collectives of citizens ``homestead'' the spectrum, using free
software and slightly modified transmitting and receiving hardware?
Communications regulators in several countries are beginning to worry
that they will soon be able to do just that. Broadcasters, already
losing eyeball-share to ``the Internet,'' are one constituency
stimulating their worry. Badly battered telecommunications companies
are another. If public wireless networks controlled by their users
begin carrying significant amounts of voice and data traffic now
carried over phone lines, local telephone service monopolies will be
subjected to competition from a medium that is completely free.

So regulators are going to face increasing calls to prevent free
software from running software-controlled radios, in the interest of
preventing the public from using the public airwaves in the ways the
public actually wants. Agencies that have traditionally controlled
telephones and radio receivers are going to be attempting to control
every general-purpose computer, and the software that runs on it.
Free software is going to stand not only for free content, but also
for free spectrum, and with it, free bandwidth. The same sort of
challenge to their control that the content industries were facing in
2002, the bandwidth industries, both broadcasting and
telecommunications, with all their power and their allies in
government, are going to be facing long before 2012. A movement that
originally seemed primarily a new kind of competitor for the PC
software monopoly, and then became a threat to the sanctity of
cultural ownership by Disney and other ``content'' companies, will
soon be challenging the social control of bandwidth and the power of
the broadcasters. Once again, when it comes to free speech, free
software matters.

*Eben Moglen is professor of law
at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read
more of his writing at moglen.law.columbia.edu.